Article 2/2025

What are some of the important principles governing a charge of intoxication (i e being under the influence of alcohol) as opposed to having tested positive for alcohol (as dealt with in article 1/2024)?

To what extent is there currently a similar jurisdiction so applicable to answering the above question in respect of the symptoms of cannabis and its effects?

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  • The LAC, in Tanker Services (Pty) Limited v Magudulela [1997] 12 BLLR 1552 (LAC), stated that:
    •  ‘The difficulty with proving the charge brought against the respondent is that intoxication is a matter of degree. The respondent would only be “under the influence of alcohol” if he was no longer able to perform the tasks entrusted to him, and particularly the driving of a heavy vehicle, with the skill expected of a sober person.Whether an employee is, by reason of the consumption of intoxicating liquor, unable to perform a task entrusted to him by an employer must depend on the nature of the task.’
  • In cases where alcohol intoxication has been suspected, a breathalyser is not always conclusive on its own to justify dismissal (Palaborwa Mining Company Ltd v Cheetham and Others [2007] ZALAC 11; (2008) 29 ILJ 306 (LAC); [2008] 6 BLLR 553 (LAC); Mondi Paper Co v Dlamini [1996] 9 BLLR 1109 (LAC)).
  • Instead, it could be coupled with other evidence, such as the employee having slurred speech, impaired coordination, loudness and all the other known symptoms of alcohol intoxication (National Union of Metal Workers of South Africa obo Cloete v Trentyre (Pty) Ltd and Others [2008] ZALAC 18; [2016] JOL 35706 (LAC) (Trentyre); XStrata Coal South Africa v Commission for Conciliation Mediation And Arbitration and Others [2014] ZALCJHB 14).
  • A similar jurisprudence on the known symptoms of cannabis and its effects, compared to the duties associated with the nature of the job, should be allowed to develop. All this would depend – in addition to the test results (where available) – on the facts of each case and eyewitness accounts. This was not to say that test results, on their own, are always insufficient, but that the nature of the job determined the amount of evidence required to justify dismissal (Jet Demolition (Pty) Ltd v AMCU obo Sehoshe and Others [2022] ZALCJHB 55, at paragraph [52]).
June 12, 2025

In terms of s34(1) of the BCEA, an employer may not make deductions from an employee’s remuneration unless, subject to s34(2), the employee agrees, in writing, or the deduction is made in terms of a law, collective agreement, court order or arbitration award.

June 5, 2025

A case is moot and therefore not justiciable if it no longer presents an existing or live controversy. With reference to National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (2) SA 1 (CC), how did the supreme court of appeal, in Mhlontlo Local Municipality and Others v Ngcangula and Another (2024) 35 SALLR 132 (SCA) recently deal with this issue?

May 29, 2025

The principle underlying the doctrine of peremption is that no person can be allowed to take up two positions inconsistent with one another, or, as is commonly expressed, to blow hot and cold, to approbate and reprobate when considering pursuing litigation. With reference to Qoboshiyane NO v Avusa Publishing Eastern Cape [2012] ZASCA 166; 2013 (3) SA 315 (SCA), what is the test to be applied to determine whether or not a party has perempted its right to institute legal proceedings?